Opinion
B225900
01-06-2012
THE PEOPLE, Plaintiff and Respondent, v. CESAR DANIEL CHAVEZ, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA083210)
APPEAL from the judgment of the Superior Court of Los Angeles County. Joan Comparet-Cassini, Judge. Affirmed in part, reversed in part and remanded.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Cesar Daniel Chavez guilty of one count of attempted first degree murder and one count of mayhem, and found true all special allegations, including that the crimes were committed for the benefit of a criminal street gang. Defendant appeals, asserting a litany of trial court errors. Respondent concedes the sentence on count 2 (mayhem) should have been stayed pursuant to Penal Code section 654 and that defendant is entitled to a limited retrial on the prior felony conviction allegation. We conclude defendant is entitled to a retrial on the prior conviction allegation and to a modification of his sentence to reflect a section 654 stay as to count 2. However, we find defendant has failed to establish that his remaining claims, whether viewed singly or cumulatively, rise to the level of prejudicial error warranting reversal and therefore affirm the balance of the judgment.
All further undesignated section references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2009, Alex Malinov was storing equipment from his vending machine business in a unit at a storage facility located on West 260th Street in Harbor City. He had an agreement with the owner of the facility to live on-site, acting as a security guard. On the evening of September 3, 2009, Mr. Malinov was involved in an altercation with defendant at the facility. There is no dispute that Mr. Malinov suffered a grievous injury to his neck, as well as additional lacerations about the head and chest, from the altercation with defendant or that defendant is the individual who inflicted those injuries. The material disputed facts concern whether defendant acted in self-defense or with premeditation and deliberation, whether defendant was a current member of the Harbor City Boys gang and whether the attack was gang-related. We summarize the pertinent facts and procedural background accordingly.
Defendant was charged by information with one count of willful, deliberate and premeditated attempted murder (§§ 187, subd. (a), 664) and one count of mayhem (§ 203) arising from the altercation with Mr. Malinov on September 3, 2009. It was also specially alleged as to count 1 that defendant inflicted great bodily injury (§ 12022.7, subd. (a)) and, as to both counts, that defendant used a deadly and dangerous weapon (cutting object) in the commission of the offenses (§ 12022, subd. (b)(1)). It was further alleged defendant committed both offenses for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1), and that defendant had suffered a prior felony conviction within the meaning of section 667.5. Defendant pled not guilty to all charges.
At the May 25, 2010 readiness hearing, defendant made a Marsden motion claiming his appointed counsel was incompetent, having failed to perform sufficient discovery to prepare for trial. The court denied the motion. Trial commenced June 3, 2010. Just before the beginning of voir dire on the first day of trial, the court made various rulings, including the denial as untimely of defendant's request to proceed in propria persona pursuant to Faretta , the denial of defendant's request to present two misdemeanor convictions as impeachment against Mr. Malinov, and the granting of defendant's request to bifurcate the trial of the prior conviction allegations.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Faretta v. California (1975) 422 U.S. 806 (Faretta).
Mr. Malinov testified that on September 3, around 8:00 in the evening, he was outside his storage unit, smoking a cigarette, when defendant came walking down the sidewalk bordering the storage facility. Defendant asked him for a cigarette and Mr. Malinov handed him one through the chain-link fence that separated the property from the sidewalk. Defendant then asked Mr. Malinov if he had any drugs, specifically any crack. Mr. Malinov responded that he did not have any drugs and that he did not do drugs (he may have said he did not do that "shit").
Mr. Malinov said defendant then paused and sort-of stood up straighter and told Mr. Malinov to apologize to him, that he had disrespected him. Defendant said, "I am from Harbor City -- I'm a Harbor City gang member." Mr. Malinov did not understand exactly what that was supposed to mean, so he said jokingly, "I'm from Harbor City also" and smiled at defendant. He said defendant repeated that he had to apologize to defendant for disrespecting him. Mr. Malinov asked him what he was supposed to apologize for, since he had merely given him a cigarette.
At that point, defendant "grabbed the cigarette" out of his mouth and threw it back through the fence at Mr. Malinov, saying "here is your [fucking] cigarette" and "go to your hole," which Mr. Malinov understood to mean he should go back to his storage unit. Mr. Malinov testified that he was starting to become a little anxious and told defendant that he did not take orders from him and that they should just go their separate ways.
Defendant then raised his voice and yelled at Mr. Malinov that he was going to "mess" him up. In response, Mr. Malinov told defendant that if he came onto the storage facility property, he would make a citizen's arrest. Defendant started to "almost run" down the length of the fence in the direction of the open gate. Mr. Malinov believes the distance defendant had to run to get to the gate was longer than the length of the courtroom.
Mr. Malinov, becoming more worried, ran toward his storage unit and picked up a can of pepper spray and a pair of handcuffs he had sitting on a chair, and then headed toward the gate to attempt to close it. He struggled with the gate because his motorcycle was in the way. Defendant arrived at the gate and immediately started swinging at Mr. Malinov's head and chest with his hands or fists. Mr. Malinov did not notice whether defendant was holding anything in his hands.
Mr. Malinov had the handcuffs open and was trying to clasp one around one of defendant's wrists and the other through the fence, but he was unable to do so. He said defendant kept coming at him, and Mr. Malinov tried to use one arm to block defendant from hitting his face. Mr. Malinov believed he did strike defendant, once or twice, in the head or face with the handcuffs.
Mr. Malinov then realized he was bleeding fairly badly down his chest, but he could not tell where the blood was coming from. He tried to push defendant away and was able to kick defendant in the chest, which sent defendant backwards several feet. Mr. Malinov stepped towards defendant, spraying the pepper spray. He was still bleeding a lot, dripping onto the pavement, so he went back to his storage unit to get his cell phone to call for help. Mr. Malinov called 911 and the police and paramedics arrived soon thereafter. He gave them a description of defendant, who had left the area, as a man with a shaved head, wearing a T-shirt and long, loose shorts and that defendant had claimed to be a Harbor City gang member.
On cross-examination, Mr. Malinov admitted he had been drinking alcohol, possibly as many as four drinks over the course of that day. He acknowledged he had been trained in various martial arts disciplines and hand-to-hand combat while a member of the Russian military before immigrating to the United States. Mr. Malinov stated he had taken classes to become a private investigator, had made citizen's arrests before and regularly carried a can of pepper spray.
Mr. Malinov suffered a "gruesome" and "gaping" wound across his throat, plus additional lacerations to his head and chest. He was treated at the scene by paramedics and then transported to Harbor-UCLA trauma center because of his potentially life-threatening injuries which required emergency surgery to repair. Paramedic Brian Cross, with some 21 years of experience, testified the wounds appeared to have been made by a sharp blade like a box cutter, or perhaps a knife. He also testified that Mr. Malinov was cooperative and did not display any obvious signs of intoxication.
Officer Edwin Nelson of the Los Angeles Police Department (LAPD) arrived on the scene as the paramedics were treating Mr. Malinov. Officer Nelson obtained the suspect description from Mr. Malinov and put out a broadcast. A radio call also went out requesting the assistance of an officer familiar with Harbor City gangs. Scott Coffee and Andrew Gonzalez, detectives with the LAPD's Harbor Division gang unit, responded to the scene.
Detective Gonzalez testified that, once on the scene, he received word that a possible suspect was in the area. The information came in from an anonymous caller to 911. Over defense objection, Detective Gonzalez was allowed to testify to the general information relayed to him in the field about the call. The caller, who wished to remain nameless, reported an assault by defendant a few blocks away from the storage facility and identified defendant by name, as well as the moniker "Toker."
Detective Gonzalez explained he recognized defendant's name and moniker from his work in the gang unit concerning Harbor City gangs. He testified he had had prior contacts with defendant, including one in May 2009 and one on September 3, 2009, a few hours before the incident. Both encounters were consensual, and during both contacts defendant admitted to his membership in the Harbor City Boys gang.
The incident earlier in the day on September 3 had come about while Detective Gonzalez was on patrol. Defendant was outside his apartment complex on West Anaheim Street, just a few blocks from the storage facility. Defendant approached Detective Gonzalez and told him that some of the younger gang members from "South Los" (a gang affiliated with Harbor City Boys) were hanging out near the garage, doing drugs and disrespecting him and his girlfriend. Detective Gonzalez testified he spoke briefly with defendant and then told the younger gang members to leave the area.
Based on Detective Gonzalez's knowledge of defendant and the location of his residence, he, Detective Coffee, and several other LAPD officers left the scene and went to defendant's home. They found defendant asleep at home, with some abrasions on his body. He was shirtless and wearing denim shorts and tennis shoes. Detective Coffee noticed some blood on defendant's chest and on his tennis shoes. Defendant was placed under arrest. He asked the officers, "Is this about the fight?"
John Craig, an officer with the LAPD's Harbor Division gang unit, testified as the prosecution's expert on Harbor City gangs, including the Harbor City Boys. Officer Craig explained the history of the Harbor City Boys, that it was a criminal street gang that had been around since at least the 1950's, that it was currently active with approximately 145 documented members, and that the storage facility on West 260th Street was located in territory claimed by the gang. He also attested to the gang's colors and hand signals, and that the primary activities of the Harbor City Boys included violent crimes and assaults, as well as burglaries, vandalism and drug sales. Officer Craig testified to specific convictions suffered by Harbor City Boys gang members, including a robbery in 2009 and narcotics sales, gun possession and felony evasion in 2007.
Officer Craig also described his prior personal contact with defendant as Detective Gonzalez's partner on September 3, 2009, in which defendant admitted his gang membership. He explained that in his opinion, defendant was an active member of the gang based on defendant's admission to him and Detective Gonzalez in September 2009, plus his admissions to other officers documented in police records, including at the time of service of a civil gang injunction on defendant in 2006. He attested to defendant's numerous Harbor City Boys tattoos on his arms, hands, his chest and his left shin. Officer Craig stated his general opinions regarding gang culture, as well as specific opinions, based on hypothetical questions, that an attack of the type inflicted on Mr. Malinov would be undertaken for the benefit of the gang. Officer Craig opined that gang members announce their gang affiliation during the commission of a crime, particularly violent crimes like attempted murder, to spread fear of the gang in the community which they equate with respect for the gang.
During Officer Craig's testimony, defendant moved for a mistrial based on Officer Craig's statement that defendant had been arrested in 2006 by two other LAPD officers for "an ADW." After allowing argument at sidebar, the court denied the motion for mistrial but instructed the jury to disregard as irrelevant any reference to defendant having suffered a prior arrest.
Defendant testified in his own defense. His recounting of the September 3 incident was largely identical to Mr. Malinov's as to the initial aspects of the encounter. He testified he was walking down Senator Avenue adjacent to the storage facility on his way to visit his children at their mother's home. He stopped to ask Mr. Malinov for a cigarette and Mr. Malinov passed him one through the fence. Defendant admitted that he then asked if Mr. Malinov had any drugs and that Mr. Malinov said he did not sell them and did not do that "shit." Defendant then "flicked" the cigarette back at Mr. Malinov through the fence and told him to go back to "his hole."
Defendant denies Mr. Malinov's version of what happened next. He said he never told Mr. Malinov he was a gang member or that he was going to "mess" him up. He said he simply started to walk away and was going to continue on his way down the street to visit his children. He testified it was Mr. Malinov who got "crazy" and started coming at him along the fence. When he made it to the opening in the fence, Mr. Malinov came out onto the sidewalk, told defendant he was going to arrest him and began hitting him in the face and head with a pair of handcuffs.
Defendant said Mr. Malinov is taller and bigger than he is and was a skilled fighter. He said Mr. Malinov kicked him in the chest and defendant fell to the ground. While on the ground, defendant said he picked up a piece of broken glass lying nearby. He said he feared for his life and started swinging at Mr. Malinov. At that point, Mr. Malinov sprayed something on him that burned his eyes.
Because his face was burning and he could not see well, defendant said he "staggered" away from the storage facility. A couple of blocks away, he ran into some people, although he could not recall the exact location and did not recall if it was at a home or business. He said he was yelling about his face burning and someone used a water hose to rinse off his face. He then continued to walk home. Defendant testified he could not recall whether he tossed the piece of glass away after leaving the scene, nor could he recall what happened to his T-shirt. He said he returned home shirtless, lay down on his bed in his shorts and shoes, and was still dressed that way when the police arrived awhile later. Defendant admitted he did not call 911 or the police to report the incident. He further admitted that when the officers placed him under arrest, he asked if this was "about the fight," but does not recall whether he tried to explain that it was he who had been assaulted by Mr. Malinov or that Mr. Malinov had instigated the fight.
Defendant acknowledged he had a drug problem but said he had not taken drugs that day; he had only consumed maybe two 24-ounce beers. Defendant further admitted he used to be a Harbor City Boys gang member and that his moniker was "Toker." He said he left the gang, some 12 to 16 years earlier, or sometime around the time he got married in 1991. However, he also testified he got his Harbor City Boys tattoos around 1995. He confirmed he did speak with officers earlier in the day on September 3, 2009, as described by Detective Gonzalez and Officer Craig, but denied telling them he was a gang member. Defendant stated he had been a gang member just because he was born in Harbor City, he did not commit any crimes as a gang member, and he did not know of any Harbor City Boys gang members who had committed crimes. Defendant also stated he was "jumped in" to the gang at the age of 15 because "it was the thing to do." He admitted to having suffered prior felony convictions in 1996 for possession of cocaine for sale and burglary, and in 2006 for felony evasion.
In rebuttal, the prosecution presented the testimony of Dr. Catherine Hunter, the surgeon who performed emergency surgery on Mr. Malinov. She stated she was not a forensic pathologist and could not therefore rule out that Mr. Malinov's wounds were caused by a sharp piece of glass, but she believed they looked like the type of wounds caused by a knife or box cutter. Some of the smaller lacerations were thin slashes and not the thicker-type wounds that would be typical of a piece of glass.
The jury returned a verdict finding defendant guilty of both charges, and finding all special allegations true. At the sentencing hearing on July 8, 2010, defendant told the court he wished to "practice [his] Faretta rights," stating his belief that his appointed counsel had acted incompetently during trial. The court denied defendant's motion. The court also found true the prior conviction allegation without holding the bifurcated trial, explaining that defendant had admitted the priors during his testimony.
The court sentenced defendant on count 1, attempted first degree murder, to a life term with the possibility of parole. The court imposed a consecutive three-year term for the great bodily injury enhancement, plus a consecutive one-year term for the use of a deadly weapon enhancement. Based on the gang enhancement finding, defendant's minimum parole eligibility date on the murder charge was set at 15 years (§ 186.22, subd. (b)(5)). As to count 2, simple mayhem, the court imposed the high term of eight years, plus a consecutive one-year term for the use of a deadly weapon enhancement and a consecutive 10-year term for the gang enhancement. The court further imposed an additional one-year term for the prior conviction finding. Defendant was awarded 352 days of custody credits and ordered to pay various fines. The court ordered that defendant was to serve the determinate sentence on count 2 first, before serving the indeterminate sentence on count 1, rejecting defense counsel's argument that the sentence on count 2 should be stayed pursuant to section 654. This appeal followed.
DISCUSSION
Defendant raises 14 issues, asserting instructional error, multiple evidentiary and constitutional errors both in the admission and the exclusion of evidence, wrongful denial of the motion for mistrial as well as a Marsden motion, sentencing errors, and insufficient evidence in support of the "willful, deliberate and premeditated" finding and the gang enhancement allegations. Respondent concedes the sentencing errors, stating the sentence on count 2 should have been stayed pursuant to section 654 and that defendant never waived his statutory right to trial by jury on the prior conviction allegation requiring a limited retrial on that issue. We conclude defendant is entitled to a retrial on the prior conviction allegation and to a modification of his sentence with respect to count 2 (mayhem). We reject his remaining assignments of error.
1. The Evidentiary Rulings
a. Admission of the anonymous 911 call
Defendant contends the trial court committed error in admitting testimony about the anonymous call to 911 reporting an alleged second assault by defendant shortly after the attack on Mr. Malinov. Defendant contends the court's error was prejudicial under both state evidentiary law and federal constitutional law.
The challenged testimony occurred during the direct examination of Detective Gonzalez. The prosecutor began to question Detective Gonzalez about receiving information, while on the scene, that a possible suspect in the assault on Mr. Malinov might still be in the area. In response, Detective Gonzalez confirmed that he received information that a caller to 911, who wished to remain nameless, had reported an assault in the vicinity of the attack on Mr. Malinov, and identified defendant by name and the gang moniker "Toker." Defense counsel objected on the grounds of hearsay, but requested a limiting instruction if the testimony was to be admitted. The court instructed the jury that Detective Gonzalez's testimony on this point was being admitted solely for the limited purpose of explaining Detective Gonzalez's conduct and not for the truth of the information the caller provided.
The prosecutor then proceeded to ask follow-up questions about the location of the alleged second assault in relation to the storage facility. Defense counsel once again objected and a sidebar discussion was held. Defense counsel reiterated his hearsay objection and stated that the testimony of a purported second assault was unduly prejudicial under Evidence Code section 352. Defense counsel argued that it could simply be stated that based on information the detective received, he went to defendant's home to speak with him, without relaying the purported hearsay content of the call. The court overruled the objections, stating the testimony was not hearsay, was not being admitted for the truth, and merely "explains why [Detective Gonzalez] did what he did. It doesn't make sense unless you have the fact it was the same description."
The prosecutor's questioning of Detective Gonzalez continued, focused on Detective Gonzalez's prior personal contacts with defendant and the arrest of defendant at his residence in the early morning hours of September 4, 2009. There were no further questions specifically focused on the alleged second assault and no details of any kind about the purported assault were put before the jury.
Defendant contends the admission of evidence of the anonymous 911 call was prejudicial and resulted in the denial of a fair trial because it violated his constitutional right to confront witnesses and allowed highly inflammatory evidence akin to prior crimes evidence before the jury. The record discloses no objection to the testimony on any constitutional basis. "'No procedural principle is more familiar . . . than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' [Citation.]" (United States v. Olano (1993) 507 U.S. 725, 731; see also People v. Tafoya (2007) 42 Cal.4th 147, 166 [confrontation clause violation may be forfeited by failure to object in trial court].) Defendant has forfeited this argument on appeal.
We find the trial court did not err in admitting Detective Gonzalez's account of the anonymous 911 call solely for the purpose of explaining why the police arrested defendant at home only a short time after the attack on Mr. Malinov. Without that key piece of information, there would be a strange gap in the sequence of events that might have led to jury speculation. Assuming for purposes of argument that the testimony should not have been admitted, we find admission of this evidence was not prejudicial. "[T]he applicable standard of prejudice is that for state law error, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (error harmless if it does not appear reasonably probable verdict was affected)." (People v. Cudjo (1993) 6 Cal.4th 585, 611 (Cudjo); see also People v. Carter (2005) 36 Cal.4th 1114, 1152 [applying Watson harmless error analysis to allegedly erroneous admission of prior crimes evidence].)
The 911 call was not a significant part of the prosecution case. Detective Gonzalez made a brief reference to a report of a second assault and there was little or no substantive evidence presented regarding the 911 call. The jurors were given a limiting instruction that the testimony about the 911 call was not being admitted for the truth of the content of the call, and jurors are presumed to have followed the law. (People v. Williams (1995) 40 Cal.App.4th 446, 456.) The focus of Detective Gonzalez's testimony was his prior personal contacts with defendant and knowledge of defendant from his work in the Harbor Division gang unit. The overwhelming majority of evidence presented by the prosecution was the direct testimony of Mr. Malinov as to the events that occurred that evening and the expert testimony of Officer Craig as to gang-related issues. The prosecutor did not mention the 911 call or draw any attention to it at all during closing argument. And, during his own testimony, defendant expressly admitted to having been convicted of prior felonies. The brief mention of another "assault" could not have been reasonably significant given the balance of the evidence presented to the jury.
b. Exclusion of impeachment of victim
Defendant also contends the court abused its discretion in excluding the two misdemeanor convictions suffered by Mr. Malinov that defendant sought to offer as impeachment evidence. Defendant argues the court's refusal to even consider the two convictions as potential impeachment not only was evidentiary error, but violated his constitutional rights to present a defense and to confront witnesses. Because there were no eyewitnesses to the incident, the primary evidence was defendant's word against Mr. Malinov's testimony as to how the incident unfolded, making credibility determinations especially significant. Defendant contends the exclusion of impeachment was therefore highly prejudicial because it allowed Mr. Malinov to testify with a false aura of honesty to defendant's detriment.
Defendant is correct that no witness is entitled to a false aura of veracity. (People v. Chavez (2000) 84 Cal.App.4th 25, 28.) However, the trial court nonetheless retains significant discretion in controlling the proceedings before it, consistent with its duty to "limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth . . . ." (Pen. Code, § 1044.) This includes the duty to control the method and mode of interrogation to facilitate the effective ascertainment of the truth and to protect witnesses from undue harassment or embarrassment. (Evid. Code, § 765, subd. (a).) As such, the trial court has wide latitude to restrict cross-examination, including under Evidence Code section 352, without impinging on any rights of the defendant, constitutional or otherwise. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1080.)
Here, the court was presented with Mr. Malinov's record which apparently consisted of two misdemeanor convictions from 1983 and 1992. The record does not indicate the nature of the convictions other than that they were misdemeanors. The court explained that it did not allow impeachment with misdemeanor convictions because the evidence consumes a lot of court time and distracts from the issues in dispute. The court denied defendant's request to offer the misdemeanors as impeachment.
Since the Supreme Court's decision in People v. Wheeler (1992) 4 Cal.4th 284, evidence of past conduct amounting to a misdemeanor that bears on a witness's veracity is admissible subject to the trial court's exercise of discretion under Evidence Code section 352. In abrogating the felony-only rule for impeachment, the Supreme Court cautioned: "In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Wheeler, supra, at pp. 296-297, italics added.)
Various factors are pertinent to a determination under Evidence Code section 352 whether the probative value of proffered impeachment is substantially outweighed by the prejudicial value. "When the witness subject to impeachment is not the defendant, those factors prominently include whether the conviction (1) reflects on honesty and (2) is near in time." (People v. Clair (1992) 2 Cal.4th 629, 654.) "'The nearness or remoteness of the prior conviction is . . . a factor of no small importance. Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness.' [Citation.]" (People v. Beagle (1972) 6 Cal.3d 441, 453, italics added.)
Here, the trial court indicated it did not permit impeachment with misdemeanor convictions, but the court also explained such evidence is unduly time consuming and "waters down the issues." It would be error to apply a blanket rule excluding impeachment with misdemeanors without considering the section 352 factors, but here, the court recited section 352 factors for excluding the misdemeanor convictions. We find any error in referring to a so-called "blanket rule" was harmless because the two prior misdemeanor convictions were properly excludable under section 352. Assuming Mr. Malinov's two prior misdemeanor convictions involved conduct amounting to moral turpitude, the record is undisputed they occurred in 1983 and 1992, the last conviction occurring some 18 years before the trial. The convictions were plainly remote, by any standard, and unlikely to be a meaningful reflection on Mr. Malinov's present capacity for veracity.
Moreover, defense counsel cross-examined Mr. Malinov at length, eliciting testimony that he had consumed as many as four alcoholic drinks that day which may have affected his recall of the incident and/or his temperament; that he regularly carried pepper spray and had made prior "citizen's arrests"; that he was a skilled fighter; and that after struggling with the gate, he actually stepped outside and closed himself on the outside with defendant instead of on the inside to avoid the altercation with defendant. Defense counsel used this evidence to argue that Mr. Malinov was the aggressor, intent on "arresting" defendant for his slights to Mr. Malinov at the fence, and that defendant acted solely in self-defense. Defense counsel's cross-examination of the facts directly pertaining to the events that evening related to the issues in dispute was far more significant to the question of credibility than the proffered impeachment. It is not reasonably probable the jury would have rendered a more favorable judgment to defendant simply by hearing evidence of Mr. Malinov's misdemeanor convictions from the distant past.
Finally, defendant has failed to show the exclusion of the impeachment deprived him of any constitutionally protected rights. "'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense.'" (Cudjo, supra, 6 Cal.4th at p. 611.)
c. The gang injunction evidence
Defendant contends the court erroneously admitted testimony that defendant was served with a civil gang injunction in 2006. Defendant's claim of error is based on the defective proof of service forms for the injunction, and the hearsay evidence that was allowed concerning service of the injunction.
The issue arose during Officer Craig's expert testimony, specifically the portion of his testimony concerning his opinions about defendant's membership in the Harbor City Boys gang. During the prosecutor's questioning of Officer Craig about his knowledge of defendant generally, Officer Craig explained his prior personal contact with defendant on September 3, 2009, in which defendant admitted his gang membership. He then began to describe information he had reviewed in the gang unit's files in preparing his opinions. Officer Craig specifically stated he reviewed a document called a "gang injunction worksheet" which identified defendant as having been served (by two other officers who no longer worked at Harbor Division) with the Harbor City Boys gang injunction in 2006 and that defendant had identified his moniker as "Toker." Defendant did not raise any objections to this testimony.
During cross-examination, the service issue was revisited by defense counsel and at that point, it became clear that the 2006 declaration of service for the injunction had been filled out incorrectly (the executing officer had signed his name on the line where defendant's name as the party served should have been). It was also revealed that another declaration had recently been signed to correct the error, but bore the 2006 service date, instead of the date the corrected proof of service was actually signed.
At a sidebar discussion, defense counsel initially requested that all testimony regarding service of the injunction be stricken. The court declined to do so, but told defense counsel he was free to cross-examine Officer Craig about the discrepancies and argue whatever inferences he felt reasonably arose from such evidence. Defense counsel explained he would seek a late discovery instruction as to the failure to timely produce the corrected proof of service. Thereafter, the questioning of Officer Craig resumed and defense counsel extensively cross-examined Officer Craig about the discrepancies in the two proofs of service.
Respondent contends defendant has forfeited any claim of error by failing to object. However, once it was revealed during trial, to the apparent surprise of both the court and defense counsel, that there was a corrected proof of service which was also defective, defense counsel did make a sidebar motion to strike all evidence regarding service of the injunction. Assuming defendant's request to strike satisfies the requirements of Evidence Code section 353, we will resolve defendant's claim on the merits.
The initial testimony by Officer Craig about service of the injunction was based on his review of the files maintained by the Harbor Division gang unit, including the gang injunction worksheet, as well as direct conversations with the two officers who had served the injunction. "The rule is long established in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay." (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209, italics added; accord, People v. Gardeley (1996) 14 Cal.4th 605, 618-620; People v. Williams (2009) 170 Cal.App.4th 587, 621 ["an expert witness may rely on hearsay as the basis for an opinion so long as the hearsay is reliable"].) "Gang experts may rely on their own investigations and information obtained from other law enforcement officers, including information from police reports, in forming their opinions." (People v. Williams, supra, at p. 622.) Additionally, no confrontation clause violation results from the admission of such testimony because hearsay relied upon by a gang expert is not presented for the truth of the matter and the expert is available for cross-examination. (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1426-1427.) We find no error in the court's admission of this testimony by Officer Craig.
We also find the discrepancies in the proofs of service that came to light during Officer Craig's testimony did not undermine the propriety of Officer Craig's earlier testimony or warrant an order striking all such testimony from the record. To the extent there was any error in allowing the testimony about the service of the injunction on defendant, it was plainly harmless given the wide latitude defense counsel was given to extensively cross-examine Officer Craig about the discrepancies, and to thereafter argue to the jury that the evidence showed the police officers were lying about effectuating service of the injunction on defendant.
Moreover, the gang injunction evidence was merely incidental to the prosecution's overall evidence establishing defendant's status as a current member of the Harbor City Boys. There was far more substantial, credible evidence of defendant's gang membership presented to the jury, including Detective Gonzalez's and Officer Craig's testimony that defendant admitted his gang membership during their encounter with him earlier in the day on September 3, 2009, defendant's admission to Detective Gonzalez in May 2009 and Mr. Malinov's testimony that defendant declared his gang membership before assaulting him. The admission of the minimal additional evidence regarding service of the gang injunction on defendant in 2006 could not have amounted to prejudicial error. (People v. Hill (2011) 191 Cal.App.4th 1104, 1125 [no error admitting some hearsay statements through gang expert where relevant to foundation of opinions rendered and corroborated by other evidence].) Defendant has failed to show a miscarriage of justice resulted from the admission of the gang injunction evidence. (Evid. Code, § 353.)
We find the remaining arguments concerning the admission of this evidence do not merit discussion, including the claim of prosecutorial misconduct for which no objection was raised (People v. Benavides (2005) 35 Cal.4th 69, 108), and the ineffective assistance of counsel claim as the record sheds no light on counsel's tactical choices in this regard. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
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2. The Jury Instructions
Defendant contends the court erred in refusing to correctly instruct on the burden of proof regarding self-defense. We review a claim of instructional error de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 217; People v. Burch (2007) 148 Cal.App.4th 862, 870 [validity and impact of jury instructions reviewed independently because "question is one of law and the application of legal principles"]; see also People v. Smith (2008) 168 Cal.App.4th 7, 13 [propriety of jury instructions determined from the entire charge from the court and not from consideration of specific instructions in isolation].)
Defendant's theory of the case was that he acted in self-defense. Defendant proposed a modified version of CALJIC No. 8.66, adding language at the end stating the burden of proof regarding self-defense against a charge of attempted murder. The key language defendant sought to include was: "An attempt to kill is lawful if done in lawful self-defense. The People have the burden to prove that the attempt to kill was not in lawful self-defense. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty."
Defendant's proposed language was substantially similar to CALJIC No. 5.15 which provides that, in homicide cases where the defense of justification or self-defense is raised, the burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful. CALJIC No. 5.15 embraces the holding of People v. Sanchez (1947) 30 Cal.2d 560 (Sanchez). Sanchez held that a defendant facing a homicide charge is entitled, upon request, to an instruction stating that if the evidence supports a reasonable doubt the killing was unlawful, the defendant is entitled to an acquittal. (Sanchez, at pp. 571-572.)
In People v. Adrian (1982) 135 Cal.App.3d 335, the court, discussing Sanchez, reasoned there was no sound basis to distinguish between homicidal and nonhomicidal assault cases. "Self-defense negates culpability for assaultive crimes, whether or not the assault results in death." (Adrian, at p. 340.) "In either event self-defense goes directly to guilt or innocence." (Ibid.) Since the prosecution retains the burden of persuasion on matters directly affecting guilt or innocence, a defendant in a nonhomicidal assault case is entitled, upon request, to an instruction on the burden of proof regarding self-defense where that defense has been duly tendered and there is evidence supporting it. (Id. at p. 336.)
Through his own testimony, defendant here presented sufficient evidence that, if credited by the jury, would have supported his plea of self-defense. An instruction on the burden of proof for self-defense may be warranted in a self-defense case because, without direction, the jury may be inclined to assume that it is the defendant who has the burden to prove self-defense. Assuming the court erred in failing to give the requested instruction, the error was harmless in the context of all the other instructions the court gave the jury. The court instructed the jury with the general burden of proof instruction (CALJIC No. 2.90), as well as the circumstantial evidence instruction (CALJIC No. 2.01) and numerous substantive instructions pertaining to self-defense (CALJIC Nos. 5.30, 5.31, 5.50, 5.51, 5.52, 5.55 and 5.56). Based on the totality of the instructions, the jury was properly instructed that the prosecution had the burden to prove, beyond a reasonable doubt, all essential elements of the charged crimes, including as to attempted murder that defendant had the specific intent "to kill unlawfully another human being" and as to mayhem that defendant "unlawfully and by means of physical force permanently disfigured the cheek and neck of a human being." (Italics added.) The jury was further instructed that it is "lawful for a person who is being assaulted to defend himself from attack [and] may use all force and means which he believes to be reasonably necessary. . . ." (Italics added.) These instructions, in combination with the circumstantial evidence instruction, the general burden of proof instruction and the balance of the self-defense instructions, adequately instructed the jury on the burden of proof relative to self-defense.
Moreover, "[t]he reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury." (People v. Young (2005) 34 Cal.4th 1149, 1202.) Here, during closing argument, defense counsel clearly explained to the jury the law relative to the burden of proof, and specifically the interplay with the self-defense instructions: "it is the burden [of] the people to prove to you jurors that this was not done in self-defense. They have to prove beyond a reasonable doubt that [defendant's] actions were not done in self-defense, and the jury instruction does say that it is lawful for a person who is being assaulted to defend himself from attack." Counsel reiterated this point later in his argument. The record here plainly shows that it was not reasonably likely the jury misunderstood the law regarding the prosecution's burden to prove the attempted killing of Mr. Malinov was unlawful and if there was any reasonable doubt, defendant was entitled to an acquittal. (People v. Kelly (1992) 1 Cal.4th 495, 527.)
3. Denial of the Motion for Mistrial
Defendant contends his motion for mistrial was wrongfully denied. In reviewing a motion for mistrial, we apply the abuse of discretion standard. (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) A trial court should grant a motion for mistrial "„if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]' [Citation.]" (Ibid.)
Here, the trial court did not abuse its discretion in denying defendant's motion. Officer Craig testified that defendant had been arrested by two other officers for "an ADW." The prosecution had not deliberately sought that information by way of a direct question. Officer Craig spontaneously made the statement in responding to a question about what other information he had relied upon in forming his opinions. The court ordered the jury to disregard any comment of a purported prior arrest.
Defendant contends the testimony was akin to inadmissible prior crimes evidence, and likely influenced the jury into believing defendant had a history of violent physical assaults on people, which is belied by his actual record. He therefore argues a mistrial was warranted because admission of that type of inflammatory evidence results in precisely the type of prejudice that cannot be cured by an admonition.
However, the clear focus of the trial, and the majority of evidence received, concerned the violent altercation with Mr. Malinov that resulted in grievous injuries and whether or not defendant, or Mr. Malinov, had been the aggressor. The bare reference to a prior arrest (not a prior conviction), with no additional facts, would not reasonably have been significant to the jury given the balance of the evidence in the record. (See People v. Marshall (1996) 13 Cal.4th 799, 839 [court did not err in denying motion for mistrial based on witness's testimony that defendant was an "ex-felon"].)
Moreover, the court correctly instructed the jury to disregard the reference to a prior arrest. (People v. Williams, supra, 40 Cal.App.4th at p. 456 [jurors presumed to have followed the law].) The one-time reference to the prior arrest did not irreparably damage defendant's ability to receive a fair trial. (People v. Ayala (2000) 23 Cal.4th 225, 282 [mistrial should be granted only if party's chances of receiving fair trial have been irreparably damaged].) 4. Denial of the Marsden Motion
Defendant contends he made a Marsden motion at the beginning of the sentencing hearing on July 8, 2010. (Defendant raises no claim regarding the denial of his pretrial Marsden motion on May 25, 2010, in which a closed hearing was held on the record.) He argues the court wholly failed to comply with the procedures for a Marsden hearing, arbitrarily denying the motion without allowing defendant to articulate the grounds for his motion. While the trial court was somewhat abrupt in its handling of defendant's request, we conclude there was no error.
At the opening of the sentencing hearing, defense counsel indicated "[t]here's a Marsden motion." The court cleared the courtroom and asked defendant what specific problems he was having with counsel. Defendant responded to the court that he wanted "to practice [his] Faretta rights," stating that his counsel had been incompetent during trial. The court explained that was not a Marsden motion, called for the return of the other parties and denied defendant's request to proceed in propria persona for sentencing.
The record shows defendant was reasonably aware of the difference between a Marsden request to substitute counsel and a Faretta request to proceed in pro. per., as he had made both such motions before the start of trial, in conjunction with separate requests to continue the trial. "'A request for self-representation does not trigger a duty to conduct a Marsden inquiry [citation] or to suggest substitution of counsel as an alternative.' [Citation.]" (People v. Clark (1992) 3 Cal.4th 41, 105 [court did not commit Marsden error by refusing to conduct hearing into basis for defendant's dissatisfaction with counsel which was reason for defendant's request to proceed in pro. per.].)
The fact that defendant made a general reference to dissatisfaction with appointed counsel after stating his request to exercise his "Faretta rights" was not sufficient to warrant the court conducting a Marsden hearing, given defendant's apparent knowledge of the difference between the two types of motions. "'"Although no formal motion is necessary, there must be 'at least some clear indication by defendant that he wants a substitute attorney.'" [Citations.]' [Citation.]" (People v. Dickey (2005) 35 Cal.4th 884, 920.) Defendant gave no indication that he actually wanted new substitute counsel appointed. There is no "rule that whenever a defendant makes a motion to represent himself on the basis of dissatisfaction with counsel, the court automatically should inquire whether he would like to make a motion for substitution of counsel." (People v. Burton (1989) 48 Cal.3d 843, 855; accord, People v. Frierson (1991) 53 Cal.3d 730, 741.)
5. The Substantial Evidence Issues
a. The "willful, deliberate and premeditated" finding
Defendant argues there is insufficient evidence in support of the "willful, deliberate and premeditated" finding as to count 1. "In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . [R]eview for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence." (People v. Rodriguez (1999) 20 Cal.4th 1, 11, italics added.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Defendant, citing People v. Anderson (1968) 70 Cal.2d 15, argues there is no evidence of any of the type ordinarily relied upon to establish premeditation and deliberation for purposes of first degree murder or attempted first degree murder. However, our Supreme Court has explained that "[i]n identifying categories of evidence bearing on premeditation and deliberation, Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation. [Citation.] From the cases surveyed, the Anderson court identified three categories of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing. . . . The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
Premeditation and deliberation may be inferred from a variety of factual circumstances and need not be based on direct evidence. (People v. Paton (1967) 255 Cal.App.2d 347, 351-352 (Paton).) Some of the additional factors the Supreme Court has specified are relevant to a finding of willful, deliberate and premeditated conduct are "the type of weapon employed and the manner of its use; the nature of the wounds suffered by the deceased; the fact that the attack was unprovoked and that the [victim] was unarmed at the time of the assault; . . . and [the defendant's] immediate flight thereafter from the scene of the assault." (People v. Cook (1940) 15 Cal.2d 507, 516 [affirming judgment finding willful, deliberate, premeditated murder where the defendant, looking for a purse- snatching victim, grabbed a woman with whom he was not acquainted and, holding a two-by-four with both hands, struck her in the head and then fled the scene].)
Our task is to review whether the evidence below supports "an inference that the killing occurred as the result of preexisting reflection, as opposed to an unconsidered or rash impulse." (People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.) We find there was ample evidence presented to the jury which supports the jury's true finding that the attempted murder of Mr. Malinov was willful, deliberate and premeditated.
There was evidence of both planning and motive. Both Paramedic Cross and Dr. Hunter testified that Mr. Malinov's wounds appeared to be from a weapon like a box cutter or similar blade, reasonably supporting the inference that defendant armed himself for confrontation before leaving his residence that evening. Mr. Malinov attested to the fact that defendant asserted his gang membership and repeatedly demanded an apology for having "disrespected" him. That testimony, combined with Officer Craig's expert testimony about gang culture, was substantial circumstantial evidence of a retaliatory gang-related motive for the attempted murder of Mr. Malinov over his perceived disrespect of defendant and his gang.
Mr. Malinov also testified that defendant shouted at him that he was going to "mess" him up and then proceeded to run the length of the fence down to the open gate to confront Mr. Malinov. This was ample evidence for the jury to find that defendant had sufficient time to form a deliberate intent to attack Mr. Malinov. Defendant could have continued down the street on the safety of his side of the fence but chose not to do so. "[I]t is important to keep in mind that deliberation and premeditation can occur in a brief period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .' [Citation.]" (People v. Garcia, supra, 78 Cal.App.4th at pp. 1427-1428; see also People v. Brito (1991) 232 Cal.App.3d 316, 323-324 [fact that defendant made decision to shoot fleeing victim in back within a matter of a few seconds does not defeat finding of substantial evidence of deliberation].)
The manner in which the attack was carried out, as well as defendant's immediate flight from the scene, also support the jury's finding. All of the witnesses who described Mr. Malinov's injuries from the assault described the neck wound as "gruesome" and potentially life-threatening. Mr. Malinov testified that defendant directed his attack at his head and chest, repeatedly slashing at him. This was solid circumstantial evidence supporting a deliberate intent to kill. (See, e.g., Paton, supra, 255 Cal.App.2d at p. 352 [factors such as use of knife and wounds that do not appear without aim but directed toward chest and heart relevant to finding of requisite premeditation]; see also People v. Pride (1992) 3 Cal.4th 195, 248 [of 69 stab wounds, most were located in chest near the heart, and jury could reasonably infer victim's death was calculated and not the product of an "unconsidered explosion of violence"].)
b. The gang allegations
Defendant also argues there is insufficient evidence supporting the true finding on the gang enhancement allegations pursuant to section 186.22, subdivision (b)(1). "The law regarding appellate review of claims challenging the sufficiency of the evidence in the context of gang enhancements is the same as that governing review of sufficiency claims generally." (People v. Leon (2008) 161 Cal.App.4th 149, 161.) We therefore apply the standard set forth in part 5a, ante.
The enhancement under section 186.22(b)(1) is two-pronged. The first prong is the defendant's conviction was gang-related, i.e., "a felony committed for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22(b)(1).) The second prong is the defendant committed the crime "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22(b)(1); see also People v. Albillar (2010) 51 Cal.4th 47, 60, 63-67 (Albillar).)
As to the first prong, the prosecution's case rested on evidence that defendant committed the attack on Mr. Malinov for the benefit of his street gang, the Harbor City Boys, as defendant was acting alone and there was no evidence he undertook the assault at the direction of fellow gang members. We find there is sufficient, credible evidence in the record that the attempted murder of Mr. Malinov was committed by defendant for the benefit of the Harbor City Boys.
"In cases where a gang enhancement is alleged . . . , expert testimony regarding the 'culture, habits, and psychology of gangs' is generally permissible because these subjects are '"sufficiently beyond common experience that the opinion of an expert would assist the trier of fact."' [Citation.] For example, an expert may properly testify about the size, composition, or existence of a gang; 'motivation for a particular crime, generally retaliation or intimidation'; and 'whether and how a crime was committed to benefit or promote a gang.' [Citations.]" (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512; see also Albillar, supra, 51 Cal.4th at p. 63 [expert testimony that particular criminal conduct enhances gang's "reputation for viciousness" may be sufficient to raise inference that the crime was committed for the benefit of a gang within the meaning of section 186.22].)
Here, Officer Craig provided expert testimony concerning gang culture and motivation. He specifically opined that gangs equate fear with respect and routinely take action to intimidate victims, particularly of violent crime, by declaring gang membership. He stated that, in so doing, the gang ensures that word is spread throughout the community about crimes having been undertaken in the name of the gang, in retaliation for not respecting the gang, or for going to the police about gang activity. In turn, the gang obtains more "respect" and the ability to operate freely and without interference. Officer Craig expressly opined, based on hypothetical facts rooted in the actual evidence presented, that the attempted murder of Mr. Malinov would have been undertaken for the benefit of the Harbor City Boys.
In addition to the expert testimony of Officer Craig on the issues of the retaliatory gang motive and how the crimes against Mr. Malinov would have benefitted the gang, there was also evidence that established the assault took place in territory claimed by the Harbor City Boys gang. And Mr. Malinov testified that defendant expressly invoked the Harbor City Boys gang before attacking him and repeatedly demanded an apology for disrespecting him as a gang member. Such evidence adequately supports a finding that the attempted murder of Mr. Malinov was undertaken for the benefit of the Harbor City Boys gang within the meaning of section 186.22, subdivision (b)(1).
As to the second prong, this same evidence adequately supports a determination that defendant committed the crimes against Mr. Malinov "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) While the evidence was largely circumstantial as to defendant's intent, circumstantial evidence is nonetheless sufficient. "There is rarely direct evidence that a crime was committed for the benefit of a gang. For this reason, 'we routinely draw inferences about intent from the predictable results of action. We cannot look into people's minds directly to see their purposes. We can discover mental state only from how people act and what they say.' [Citation.]" (People v. Miranda (2011) 192 Cal.App.4th 398, 411-412.) Defendant did not declare he was going to "mess up" Mr. Malinov to benefit the gang, but the jury could reasonably infer that, by announcing his gang membership and demanding the respect owed a gang member moments before stating his plan to "mess up" Mr. Malinov, defendant's assault on Mr. Malinov was committed for the purpose of promoting the interests of his gang.
Finally, the fact that defendant acted alone in carrying out the assault on Mr. Malinov does not preclude a finding under the statute. We are mindful that not every crime committed by a gang member is properly deemed "gang-related" (Albillar, supra, 51 Cal.4th at p. 60). Nevertheless, an active gang member acting alone may be properly found to have promoted, furthered, or assisted in the felonious conduct of gang members within the meaning of the statute. (See People v. Margarejo (2008) 162 Cal.App.4th 102, 110 [solo gang member in car fleeing pursuing police and repeatedly displaying gang signs outside car window, in conjunction with expert testimony, sufficient to support gang enhancement].)
6. Cumulative Error
Defendant argues that, even if this court finds each of his asserted errors individually harmless, we should conclude their cumulative effect resulted in a miscarriage of justice warranting reversal of his conviction. "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.' [Citation.]" (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Defendant has not shown he was deprived of a fair trial.
7. The Sentencing Issues
a. The section 654 error
Respondent concedes defendant's contention the court erred in failing to stay defendant's sentence on count 2. We agree the proscription against multiple punishments set forth in section 654 requires the sentence on count 2 (mayhem) be stayed. The record contains no evidence that defendant harbored multiple criminal objectives in attacking Mr. Malinov. "If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551; see also People v. Diaz (2002) 95 Cal.App.4th 695, 708 [affirming judgment on attempted murder base count but staying concurrent sentences on counts for aggravated mayhem and aggravated assault where all were based on single act of shooting one victim].)
The sentence on count 2 (mayhem) must be stayed in accordance with section 654 so long as the judgment on count 1 (attempted murder) remains in full force and effect. The judgment and abstract of judgment shall be modified accordingly.
b. The prior conviction finding
Respondent also concedes that defendant did not waive his statutory right to a jury trial on the prior conviction allegations. The information alleged that defendant suffered a prior conviction on February 9, 2007, for a violation of Vehicle Code section 2800.2, subdivision (a) (willful or wanton disregard for public safety while fleeing pursuing police officer). On the first day of trial, the court granted defendant's request for a bifurcated trial on the prior felony conviction allegation. There was no waiver of the right to a jury trial on the allegation at that time.
During trial on the substantive charges, defendant admitted to having suffered a prior felony evasion conviction on November 20, 2006. There is nothing in the record showing that, prior to defendant's testimony, the court obtained a waiver from defendant of his statutory right to trial by jury on the prior conviction allegations. At the sentencing hearing, the court did not obtain any waivers from defendant to proceed by way of bench trial. The court nonetheless admitted the prosecution's certified section 969, subdivision (b) packet as evidence that defendant had suffered a conviction for felony evasion on February 8, 2007. The court proceeded to find true the prior conviction allegation and imposed a one-year prison term enhancement.
By statute, defendant was entitled to trial by jury on the issue of whether or not he had suffered a qualifying prior felony conviction. (§§ 1025, 1158; see also People v. Mosby (2004) 33 Cal.4th 353 [defendant must knowingly and voluntarily waive rights to trial by jury, to remain silent and to confront witnesses before court accepts defendant's admission he or she suffered a prior conviction].) We therefore reverse for a limited retrial on the prior felony conviction allegation. Following any retrial, the court shall resentence defendant and modify the abstract of judgment accordingly.
DISPOSITION
The judgment is reversed in the following respects: The true finding on the prior felony conviction allegation is reversed and remanded for a retrial limited to that allegation. Following any retrial, the court shall resentence defendant and modify the abstract of judgment accordingly. The judgment shall also be modified to reflect a stay of the sentence on count 2 (simple mayhem) pursuant to section 654. The trial court is directed to prepare and transmit the modified abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J. WE CONCUR:
BIGELOW, P. J. RUBIN, J.